Opinion
No. 108,330.
2013-08-29
Glenn HOPKINS, Appellant, v. Nicholas E. McCOLLAM, Appellee.
Appeal from Montgomery District Court; Roger L. Gossard, Judge. W.J. Fitzpatrick, of Independence, for appellant. Norman R. Kelly, of Norton, Wasserman, Jones & Kelly, L.L.C., of Salina, for appellee.
Appeal from Montgomery District Court; Roger L. Gossard, Judge.
W.J. Fitzpatrick, of Independence, for appellant. Norman R. Kelly, of Norton, Wasserman, Jones & Kelly, L.L.C., of Salina, for appellee.
Before LEBEN, P.J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
LEBEN, J.
While in his own back yard, Glenn Hopkins was bitten by his neighbor's dog. There's no evidence that the dog had bitten anyone before or done anything more vicious than briefly chasing a jogger running by. Hopkins sued the neighbor for negligence in letting the dog roam the neighborhood, but the district court ruled that since there was no history of vicious behavior from the dog, it wasn't reasonably foreseeable that the dog would bite Hopkins and, thus, the neighbor wasn't negligent.
Hopkins has appealed, claiming that the normal rules applied to negligence cases—in which the dog must show some tendency toward vicious behavior—don't apply here because the dog was trespassing on Hopkins' property when it bit Hopkins. But a Kansas statute provides that the strict-liability principles Hopkins argues for don't apply to trespassing dogs and cats; instead, “the principles of ordinary negligence shall apply.” K.S.A. 29–108. We agree with the district court that the neighbor has no liability here under the principles of ordinary negligence, and we therefore affirm the district court's judgment.
Factual and Procedural Background
Hopkins and Nicholas McCollam live near each other in Independence, Kansas. McCollam has a Rottweiler dog named Lucy.
On September 15, 2011, Lucy bit Hopkins while Hopkins was in his back yard. McCollam claims that Lucy is a gentle dog, but Hopkins submitted an affidavit saying that Lucy had “viciously attacked” him. Hopkins also said that another nearby resident, Sam Blackard, told Hopkins that Lucy had once chased him while he was jogging in the neighborhood.
Blackard submitted an affidavit denying that he'd ever been chased by Lucy or told anyone that he had. Because the case comes to us on appeal from the grant of summary judgment to McCollam—a judgment McCollam requested after Hopkins sued him—we must take the facts in the light most favorable to Hopkins. See Hansford v. Silver Lake Heights, 294 Kan. 707, 710–11, 280 P.3d 756 (2012). We therefore accept as true for our purposes that Blackard told Hopkins that Blackard had once been chased by Lucy while he was jogging. Even so, Hopkins has not submitted any evidence that Blackard ever told McCollam about that incident.
Deposition testimony submitted to the district court indicated that there was some commotion in Hopkins' back yard involving two dogs: Lucy and Hopkins' dog. Hopkins said that his dog “jumped on the other dog” when that dog “had me by the right hand because I got him off,” presumably saying that he had gotten Lucy off of his own dog. We have only a few pages of Hopkins' deposition transcript, so perhaps this was more fully explained elsewhere. For our opinion, taking the facts in the light most favorable to Hopkins, we will assume that Lucy attacked Hopkins in his back yard.
Hopkins also asked the district court to take judicial notice of a report commissioned by the United States Centers for Disease Control and Prevention and published in 2000 in the Journal of the American Veterinary Medicine Association. That report concluded that pit bulls and Rottweilers were involved in more than half of the human deaths caused in dog attacks over a 20–year period. Based on that report, Hopkins suggests that McCollam should have known that his dog had vicious tendencies because it was a Rottweiler.
The district court declined to take judicial notice of that report. The court said that other dog breeds may be more likely to cause nonfatal injuries, that it wasn't clear that any dog breed was inherently vicious just because some dogs of that breed had been involved in fatalities, and that the report itself observed that several factors other than a dog's breed were important in determining whether a particular dog is aggressive.
Based on the other evidence before it ( i.e., excluding the report), the district court found that McCollam had no reason to foresee that his dog would bite someone, so he wasn't negligent. The judge concluded that even if Lucy had chased Blackard while he was jogging, that didn't indicate the dog was vicious: “[P]eople run, children run, dogs chase them. I see it every day. And that, as far as I'm concerned, doesn't establish the dog is vicious or aggressive.” Because McCollam wasn't negligent, the district court entered summary judgment in his favor, so he had no liability for any injury Hopkins may have suffered in the encounter.
Hopkins has appealed to this court, raising two arguments.
First, he argues that the district court should have taken judicial notice of the report about Rottweilers and fatal dog attacks. In support, he cites K.S.A. 60–409(b)(4), which allows the court to take judicial notice of “specific facts and propositions of generalized knowledge which are capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy.”
Second, he argues that there was sufficient evidence to support a negligence claim against McCollam. Although Hopkins recognizes the general rule in which a dog's owner must have some prior notice of the dog's vicious tendencies for the owner to be found negligent, he asserts that the reach of this rule is limited when the dog is trespassing. He also argues that the district court's approach was too restrictive as to what may be foreseeable to a dog owner.
Analysis
I. The District Court Did Not Err by Refusing to Take Judicial Notice of a Report About Fatal Dog Attacks.
An appellate court reviews a district court's decision about taking judicial notice of evidence under the same standards we apply to other evidentiary rulings. K.S.A. 60–412(b). Most evidentiary rulings are overturned only when the district court has abused its discretion, although we independently review a ruling based solely on a question of law. See City of Wichita v. Denton, 296 Kan. 244, 257, 294 P.3d 207 (2013).
Hopkins presented two factual bases to support his claim that McCollam should have foreseen that Lucy might bite someone: (1) that Lucy had chased a jogger and (2) that Rottweilers are well known as dogs likely to bite people. Hopkins seeks to use the report to prove that McCollam should have known that Rottweilers are likely to bite people.
In this context, the district court didn't abuse its discretion or otherwise make a legal error by refusing to take judicial notice of the report. The study it outlines relates to deaths from dog attacks, not injuries from dog bites. More significantly, as the report itself makes clear, the data from the study do not tell us how many dogs of each breed there are in the United States. We can't tell whether Rottweilers are more or less likely to kill a person than another breed without knowing the number of dogs and the number of deaths associated with each breed. Accordingly, the data from the report cannot be used to infer any breed-specific risk for dog-bite fatalities. See Dias v. City and County of Denver, No. 07–CV–00722–WDM–WJW, 2010 WL 3873004, at *6 (D.Colo.2010) (unpublished opinion). And our situation is even more attenuated because Hopkins seeks to prove that Rottweilers are generally more likely just to bite a person, while the study dealt with attacks so severe that deaths resulted.
Judicial notice allows a court to take notice “of such specific facts and propositions of generalized knowledge as are so universally known that they cannot reasonably be the subject of dispute.” K.S.A. 60–409(a). We find that the report Hopkins has presented does not allow a court to accept as a “universally known” proposition that Rottweilers are a dangerous dog breed and are likely to bite people they encounter.
II. The District Court Properly Granted Summary Judgment to McCollam.
An appellate court reviews a district court's summary-judgment ruling independently, without any required deference to the district court. Because a summary-judgment motion asserts that a party is entitled to win the case no matter how contested factual issues are resolved, we must take all reasonable inferences from the facts in the light most favorable to the nonmoving party. See Hansford, 294 Kan. at 710–11, 280 P.3d 756. Here, McCollam claims that no matter how any disputed facts may be resolved, he is entitled to judgment in his favor. We therefore have considered the facts in the light most favorable to Hopkins.
So the facts before us show that Lucy bit Hopkins while in his back yard and that Lucy had once chased a jogger. We also know that Lucy is a Rottweiler, but we have no evidence before us that Rottweilers are any more likely to bite people than other breeds of dogs. We must determine whether this is sufficient evidence to show that McCollam was negligent by letting Lucy roam.
We turn next to the legal test we must apply to these facts. The traditional test is well stated in a Kansas pattern jury instruction:
“An owner who knows, or in the exercise of reasonable care should know, that an animal is vicious should confine it and see that it does no injury. The owner is bound to use that care necessary to prevent injury.” PIK Civ. 4th 126.91.
The pattern instruction is an accurate statement of Kansas law. See Carl, Administratrix v. Ackard, 114 Kan. 640, Syl. ¶ 3, 220 P. 515 (1923); Henkel v. Jordan, 7 Kan.App.2d 561, 562–63, 644 P.2d 1348,rev. denied 231 Kan. 800 (1982); Ellis v. Blaich, No. 92–1427–PFK, 1993 WL 246041, at *2–3 (D.Kan.1993) (unpublished opinion).
We must determine, then, whether McCollam should have known that Lucy had vicious tendencies from these facts. We agree with the district court that McCollam couldn't reasonably have foreseen from these facts that Lucy would have a tendency to bite people. And that's true even if McCollam had been aware that Lucy had once chased a jogger, something that wasn't directly shown in the evidence Hopkins submitted to the district court. The district court properly noted that there's no reason to believe that a dog that chases—whether the dog is chasing a rabbit, a squirrel, or even a person—is especially prone to be a dog that also bites people. See Ellis, 1993 WL 246041, at *4 (citing cases for the proposition that barking, running, chasing, and jumping are common traits of dogs and not evidence of vicious tendencies).
Hopkins argues on appeal that because Lucy was trespassing in his yard, that should change the result of the case. In support, Hopkins cites Miller v. Anderson, 11 Kan.App.2d 520, 728 P.2d 407 (1986). The facts of Miller are not especially similar to our case. There, a dog running at large was struck by a car and taken by a police officer to a veterinarian for treatment. As the officer lifted the injured dog onto an exam table, the dog's leg got caught and the dog bit the officer's nose. Our court approved the submission of the case to the jury, emphasizing that the city had an ordinance preventing dogs from running at large and that an earlier Kansas case had emphasized that a dog owner wasn't liable for a dog-bite injury where there was no prior notice the dog might be vicious and the dog was where it had a right to be:
“[T]he general rule was stated ... in Gardner v. Koenig, 188 Kan. 135, 360 P.2d 1107 (1961). ‘The defendants rely on the general rule of law that the owner of a domestic animal is not liable for injury done by it when it is in a place where it has a right to be, unless it is known by the owner to be vicious. (McComas v. Sanders, 153 Kan. 253, 109 P.2d 482 [1941].).’ (Emphasis added.) 188 Kan. at 136, 360 P.2d 1107.” Miller, 11 Kan.App.2d at 521, 728 P.2d 407.
The language we've just quoted from Miller does not say that there's liability whenever a dog is trespassing. On the facts presented in Miller, the case stands for the proposition that it's sufficiently foreseeable that a dog allowed to run at large may be injured, need treatment, and bite someone during the distress caused by the injury and treatment. Those are not our facts.
But an important change took place in Kansas law after the events that led to the Miller lawsuit, where the dog bite had occurred in 1985. In 1986, our legislature enacted K.S.A. 29–108, which provides that there is no strict liability when a domestic animal, like a dog or cat, strays onto another's property and “trespasses.” Instead, the case must be decided under ordinary negligence principles:
“[U]nless otherwise specifically provided by law, strict or absolute liability for damages for injury to any person or property resulting from domestic animal trespass shall not arise, and, in all such cases, the principles of ordinary negligence shall apply.” K.S.A. 29–108.
Given this provision in K.S.A. 29–108, the language Hopkins cites from Miller (and an earlier case, McComas ) cannot be applied beyond the factual setting found in Miller. There, one could certainly argue that animals running at large do run a risk of injury from cars that a dog owner could reasonably foresee, along with the likelihood that someone would try to help the injured animal—even though the animal, under stress and pain, might bite. The dog owner's liability would still be based on foreseeabihty, and thus principles of ordinary negligence, not whether the dog was trespassing.
The facts in our case did not make it reasonably foreseeable that Lucy would bite anyone, whether in her own yard or a neighbor's. The evidence was insufficient to support a claim that McCollam was negligent, and the district court properly granted summary judgment in his favor.
The district court's judgment is affirmed.